POINTS AND AUTHORITIES
I
THE ABSENCE OF A SEAL WHICH HAD BEEN IMMEDIATELY PLACED
ON THE TAPE RECORDINGS REQUIRES SUPPRESSION OF ALL DERIVATIVE EVIDENCE PURSUANT TO TITLE III
Title III of the Federal Wiretap Act provides:
"The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517." (18 U.S.C. § 2518(8)(a), emphasis added.)
"Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying judge." (18 U.S.C. § 2518(8)(c).)
As recently as 1990, the United States Supreme Court addressed the consequences of a violation of section 2518(8)(a) in United States v. Ojeda Rios (1990) 110 S.Ct. 1845. The communications in Ojeda Rios were recorded, sealed, maintained, and still bore the seal previously placed on them at the time the derivative evidence was proffered. The defendant did not attack the authenticity of the recordings but instead challenged the fact that the seal had not been "immediately" attached to the tapes as required by the statute. Since the Government had failed to provide a "satisfactory explanation" for not immediately obtaining the seal, the defendant argued that all derivative evidence had to be suppressed because the section, as a whole, required immediate sealing. The Government argued that an explanation was only necessary if the tapes were unsealed when the evidence was proffered.
The court explained that the Section 2518(8)(a) began with the command that tapes be sealed "immediately." The federal statute clearly required "not just any seal but a seal that has been obtained immediately" be present on those tape recordings before any evidence or testimony is introduced. The "absence" which needs to be "satisfactorily" explained encompassed not only the total absence of a seal on those tape recordings, but also the absence of a "timely applied seal." The court refused to "nullify the immediacy aspect of the sealing requirement" imposed by Congress because the primary thrust of the section was "to ensure the reliability and integrity of evidence obtained by means of electronic surveillance." The sealing requirement ensured that the Government had "no opportunity to tamper with, alter, or edit the conversations that have been recorded" and was important "precisely because it limits the Government's opportunity to alter the recordings." (United States v. Ojeda Rios (1990) 110 S.Ct. 1845, 1848; see also People v. Superior Court (Westbrook) (1993) 15 Cal.App.4th 41, 51.)
The Court explained that the Government's interpretation of the statute "would create the anomalous result that the prosecution could delay requesting a seal . . . without risking a substantial penalty . . .even though the tapes would have been exposed to alteration or editing for an extended period of time." "Such a view of the statute ignores the purposes of the sealing provision and is too strained a reading of the statutory language to withstand scrutiny."
The Court also rejected the Government's argument that it need only explain why the delay occurred and demonstrate that the tapes were authentic to allow their introduction. The court found this argument "would essentially nullify the function of the sealing requirement as a safeguard against tampering." The court clarified that:
"The statute requires a satisfactory explanation, not just an explanation. It is difficult to imagine a situation in which the Government could not explain why it delayed in seeking to have tapes sealed. Even deliberate delay would be enough, so long as the Government could establish the integrity of the tapes; yet deliberate delay could hardly be called a satisfactory explanation. To hold that proof of nontampering is a substitute for a satisfactory explanation is foreclosed by the plain words of the sealing provision."
The court found that since 2518(8)(a) had its own "explicit exclusionary remedy for noncompliance," it would be required to suppress all derivative evidence, even if the government could "prove that tapes [were] authentic" and a court was confident no tampering had taken place. Only a "satisfactory explanation" which established "objectively reasonable," "good faith," "excusable," noncompliance "based on the evidence presented" in court would satisfy the requirement of the law. (Id. at p. 1848.) The court than remanded the case for the lower court to determine whether the government's explanation for non-compliance with Section 2518(8)(a) was an objectively reasonable, excusable explanation.
In summary, Title III of the Federal Wiretap Act restricts use and disclosure of information derived from a wiretap except as specifically authorized. Law enforcement officers are only permitted to testify in court if the integrity and authenticity of the original communications are established through the continued presence of a seal immediately placed on tapes which were recorded and maintained in compliance with the procedures established in 2518(8)(a) and thereby prevent any opportunity for alteration or editing of those original recordings.
"[T]he 'seal' to which the government affiant refers is a not the equivalent of sealing under court order. The order authorizing the wiretap in this case specifically required that "[i]mmediately upon the expiration of this Order, or extensions thereof, such recording shall be made available to the Court issuing this order and shall be sealed under the Court's direction. The custody of such recordings shall be where the Court orders, and maintained in accordance with the law." [Citation.] . . .There is nothing in the record which suggests that the recordings were made available to the state court judge or that the recordings were ever sealed under the court's direction. Simply put, sealing several cassette tapes in an evidence bag in the police department's evidence room does not satisfy the sealing requirements of §18 U.S.C. Sec. 2518(8)(a) or the specific order issued in this case. [Citation.] Moreover, the government's argument runs completely counter to the purpose of sealing, which is to ensure that "subsequent to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded." (Ojeda Rios, 495 U.S. at 263, 110 S.Ct. at 1849.) The record does not reflect that the state court ordered custody of the tapes to be maintained in the police evidence room. Thus, the government appears to have had ample opportunity to access the tapes for any purpose. (United States v. Gomez (10th Cir. 1995) 67 F.3d 1515, 1524.)
SUPPRESSION IS REQUIRED WHEN THE PEOPLE
FAIL TO IMMEDIATELY SEAL TAPES WITHOUT GOOD CAUSE
Tapes must be immediately sealed. "Immediately" has been construed to mean that sealing must be done "within one or two days" and "any delay beyond that certainly calls for explanation." (United States v. Maldonado-Rivera (2d Cir.1990) 922 F.2d 934, 949; see also United States v. Vazquez 605 F.2d 1269, 1278; United States v. Massino (2d Cir.1986) 784 F.2d 153, 157; United States v. Rodriguez, (2d Cir.1986) 786 F.2d 472, 476; United States v. Poeta (2d Cir.1972) 455 F.2d 117, 122; United States v. McGrath (2d Cir.1980) 622 F.2d 36, 42-43, for delays between 3 and 15 days deemed to violate 2518(8)(a).)
The People cannot claim that sealing could be delayed until all Atel orders and extensions had expired. That interpretation of section 2518(8)(a) was rejected by the United States in United States v. Ojeda Rios (1990) 110 S.Ct. 1845, wherein the prosecutor had several different wiretap orders and extensions on different telephones operated by the same individual. When the defendant moved, one order lapsed without an extension and a new one was obtained. Sealing for all the orders was done only after expiration of the remaining orders and extensions. The prosecutor claimed he reasonably relied on two published opinions which held that no sealing was required for separate interception orders of the same premises involving the same persons until the conclusion of the whole surveillance which could be viewed as extensions of an interrelated investigation. The United States Supreme Court found that this interpretation was not correct, but suggested on remand that if reasonably relied on in good faith, it may be "satisfactory explanation." However, having since been explained and ruled "incorrect," it cannot longer be relied on.
In United States v. Carson (3rd Cir. 1992) 969 F.2d 1480, the government explained that the delay in sealing was based on attorney's misunderstanding of advice from attorney in charge was not a sufficient explanation. The court explained that a reasonable attorney would not rely on another attorney's incorrect answer where it could preclude admission of evidence. Carson also explained that the Government's statement that it had given the tapes to officials in Washington for audio enhancement could not be a satisfactory explanation for a 34-day delay. The explanation must relate directly to practicalities of obtaining the sealing order.
California's Wiretap Act requires an even greater showing be made prior to the use of wiretap derivative testimony or evidence and provides:
Any person who has received, by any means authorized by this chapter, any information concerning a wire, electronic digital pager, or electronic cellular telephone communication, or evidence derived therefrom, intercepted in accordance with the provisions of this chapter, may, pursuant to Section 629.82, disclose the contents of that communication or derivative evidence while giving testimony under oath or affirmation in any criminal court proceeding or in any grand jury proceeding. (Pen. Code § 629.78.)
"The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or other comparable device. The recording of the contents of any wire or electronic cellular telephone communication pursuant to this chapter shall be done in a way that will protect the recording from editing or other alterations and ensure that the audiotape recording can be immediately verified as to its authenticity and originality and that any alteration can be immediately detected. In addition, the monitoring or recording device shall be of a type and shall be installed to preclude any interruption or monitoring of the interception by any unauthorized means. Immediately upon the expiration of the period of the order, or extensions thereof, the recordings shall be made available to the judge issuing the order and sealed under his or her directions. Custody of the recordings shall be where the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for 10 years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of Sections 629.74 and 629.76 for investigations. The presence of the seal provided for by this section, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or electronic cellular telephone communication or evidence derived therefrom under Section 629.78. (Pen. Code § 629.64.)
As can be seen from italicized additional language, California's Wiretap Act mandates that additional procedures be complied with prior to the introduction of wiretap derivative evidence beyond those compelled by the federal law, and requires the capability of immediate verification of tape's authenticity and originality and that any alteration can be immediately detected.
The condition precedent to the introduction of any wiretap derivative evidence of the "presence of a seal," immediately placed on the original tapes which were recorded in such a way to avoid alteration or editing, and thereafter maintained for at least ten years with the seal still in tact at the time the evidence is to be introduced, clearly presupposes two things: that the communications were in fact taped and those recordings were not destroyed. Without an affirmative showing by the People of a good faith, "satisfactory" explanation establishing objectively reasonable, excusable destruction of the original tapes by law enforcement officers, any and all derivative evidence must be suppressed.
However, even if there were an satisfactory explanation, such as an unforseen "act of
God," it is still uncertain that the People would be able to introduce derivative evidence unless
they could minimally establish compliance with all other aspects of the state and federal law.